This memorandum opinion was not selected for publi cation in the New Mexico Reports. Please see 1 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please 2 also note that this electronic memorandum opinion may contain computer-generated errors or other 3 deviations from the official paper version file d by the Court of Appeals and does not include the 4 filing date. 5 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 6

STATE OF NEW MEXICO, 7 Plaintiff-Appellee, 8

v. NO. 29,339 9 CARL A. VIGIL, 10 Defendant-Appellant. 11

APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY 12 Stephen Pfeffer, District Judge 13
Gary K. King, Attorney General 14 Ann M. Harvey, Assistant Attorney General 15 Santa Fe, NM 16 for Appellee 17 Jacqueline L. Cooper, Acti ng Chief Public Defender 18 Allison H. Jaramillo, Assist ant Appellate Defender 19 Santa Fe, NM 20 for Appellant 21

MEMORANDUM OPINION 22 KENNEDY, Judge. 232 In affirming Carl Vigil’s (Defendant) convictions for battery on a household 1 member, we examine how the phrase “conti nuing personal relations hip” defines what 2 a “household member” is for purposes of enhancing the penalty for a battery 3 committed upon a “household member.” A lthough we find aspects of each party’s 4 trial and appellate practice unsettling, wecannot conclude th at any error exists 5 sufficient to warrant reversal of Defendant ’s convictions. Consequently, we affirm 6 Defendant’s convictions and sentence. 7 I. BACKGROUND 8 According to Victim’s undisputed testimony, she and Defendant became 9 acquainted in a homeless shelter. Over a period of two years, they occasionally 10 engaged in drinking and sexual intercourse. On February1, 2007, Defendant and 11 Victim checked into the Santa Fe Motel 6. This Motel 6 was a place known to police 12 officers as a place where transi ents stay in Santa Fe. 13 Defendant and Victim began drinking whiskey from a bottle he had. While 14 watching a boxing match, Defendant became angry and began punc hing Victim. She 15 blacked out, which she ascribedto her drinking too much. Victim did not recall what 16 happened after that. At some point, Victim came to, put her clothes on, and called the 17 police. She indicated that as she made this call, Defendant began hitting her on the 18 head with the telephone. As the police and paramedics arrived, she answered the door 193 with the disconnected telephone handset in her hand and told them that she had been 1 assaulted by her “boyfriend,” who had struck her with a bo ttle and kicked her in the 2 head. An officer testified that the door was cracked open when he arrived, and it 3 appeared a fight had taken place. Victim had fresh ab rasions on her face and a 4 bleeding cut. The paramedic noted that , on the way to the hospital, she was 5 unresponsive twice due to what the parame dic believed to be petit mal seizures. 6 Victim called Defendant her “boyfriend,” and witnesses also te stified to her use 7 of the term at the scene of th e crimes. At trial, Victim testified that she “didn’t know” 8 Defendant and that, as far as she was con cerned, their relationship was “just a sexual 9 relationship” in which she “u sed him for sex.” Owing to these various statements, we 10 draw no conclusions from Victim’s use of the word “boyfriend.” Defendant argues 11 that the statutory term “household memb er,” by definition, connotes a frequency or 12 quality of companionship not reflectedby the facts in this case. 13 II. DISCUSSION 14 A. Convictions for Battery on a Hous ehold Member Did Not Violate Double 15 Jeopardy 16 Defendant challenges his tw o convictions on two count s of aggravated battery 17 on a household member, alleging that they represent unitary c onduct arising from a 18 single course of events and intent and are not separable offenses. Defendant primarily 19 argues that double jeopardy prevents his suffering two convictions owing to his 204 “unitary conduct.” We re view Defendant’s double jeopardy claim de novo. State v. 1 Swick, 2010-NMCA-098, ¶ 19, 148 N.M. 895, 242 P.3d 462, cert. granted, 2010- 2 NMCERT-010, 149 N.M. 65, 243 P.3d 1147. “Conduct is unitary if it is not 3 sufficiently separated by time or place, and the object and result or quality and nature 4 of the acts cannot be distinguished.” State v. LeFebre , 2001-NMCA-009, ¶ 17, 130 5 N.M. 130, 19 P.3d 825. We view the evidence inthe light most favorable to the State 6 and resolve all conflicts and i ndulge all permissible inferen ces in favor of the verdict. 7 State v. Johnson , 2004-NMSC-029, ¶ 54, 136 N.M. 348, 98 P.3d 998. The evidence 8 given at trial sufficiently establishes that Defendant’s conduct was not unitary. 9 Defendant was charged with aggravat ed battery against a household member 10 and with simple battery ag ainst a household member. Th e jury convicted Defendant 11 of simple battery against a household memb er as a lesser-included offense. 12 It is clear from the evid ence that Defendant committe d two batteries on Victim. 13 The testimony indicated that Victim was attacked on the bed earlyin the evening in 14 the course of an argument, lost conscious ness, and did not remember anything after 15 that. When Victim regained consciousne ss, she discovered that she was unclothed. 16 She then got dressed and tried to call 911, at which point, Defendant began to hit her 17 over the head with the telephone. This constitutes facts from which the jury could 18 properly conclude two batteries occurred, separated in time by Victim’s 195 unconsciousness and by Defend ant’s employing his fists and the telephone in two 1 separate incidents. Thus, De fendant’s conduct was not unitary. 2 B. Victim Qualifies as a “Household Member” 3 Defendant next contends that his convictions shoul d not be enhanced because 4 Victim was not a “household member,” which is a term connoting a “continuing 5 personal relationship” as stated by NMSA1978, Section 40-13-2(D) (1995) (current 6 version at Section 40-13-2(A) (2008) (amended 2010). We reviewDefendant’s claim 7 with regard to what constitutes a “househol d member” de novo as a matter of statutory 8 construction. State v. Wilson , 2006-NMSC-037, ¶ 10, 140 N.M. 218, 141 P.3d 1272 9 (internal quotation marks and citation omitted). Our Supreme Court stated that it 10 looked to relationships of gravity and significance and allowed the phrase “to 11 encompass similarly enduring relationshipsbetween persons who are not related, 12 co-habiting[,] or jointly raising a child[,]” but stopping short of “every romantic 13 relationship, however brief.” Id. ¶ 13. The Supreme Court he ld that a relationship of 14 a week’s duration and described equivocallyas something short of “boyfriend and 15 girlfriend” was insufficient to establish a re lationship of sufficient gravity to satisfy 16 the statute. See id. ¶ 14. It declined to further de fine the parameters of a continuing 17 personal relationship. Id . ¶¶ 13-14. In State v. Fike , we regarded a terminated 18 relationship as a sufficiently “continuing personal relationship” by virtue of 196 cohabitation for several weeks. 2002-NMCA-027, ¶ 19, 131 N.M. 676, 41 P.3d 944. 1 Similarly, in State v. Quintana , 2009-NMCA-115, ¶ 24, 147 N.M. 169, 218 P.3d 87, 2 we held that the phrase had a “broader m eaning” than a relationship that had ended 3 a week before the battery occurred. 4 Here, despite the relationship consisting of primarily occasional meetings for 5 sex and drinking, it is the l ongevity and regularity of the relationship that convinces 6 us the statute and jury instruction gave the jury an adequatestandard by which to 7 decide. From these facts, we conclude that the evidence was sufficient from which 8 the jury could have concluded that a “continuing personal relationship” existed 9 between Defendant and Victim. 10 C. Other Issues Not Meriting Reversal 11 Defendant seeks to have us reverse his convictions for various errors he asserts 12 were committed by the prosecution that prejudi ced him, as well as errors by his own 13 defense counsel, which he maintains resu lted in receiving ineffective assistance of 14 counsel, so as to deprive him of a fa ir trial. We address each in turn. 15 1. Ineffective Assistance 16 Defendant asks us to hold that the f act his defense counsel did not seek to 17 obtain Victim’s apparently voluminous psychological records and did not subpoena 18 the treating physician and nurse from the night of the incident deprived him of 197 effective assistance of counsel. There is a two-fold test for proving ineffective 1 assistance of counsel. The defendant must show that (1) defense counsel’s 2 performance fell below that of a reasonably competent attorney, and (2) the defendant 3 was prejudiced by the deficient performance. State v. Hester , 1999-NMSC-020, ¶ 9, 4 127 N.M. 218, 979 P.2d 729. The burden of proof is on the defendant to prove both 5
prongs. Id. “The test for ineffective assistan ce of counsel is whether defense counsel 6 exercised the skill of a reasonably competent attorney.” State v. Aker , 7 2005-NMCA-063, ¶ 34, 137 N.M. 561, 113 P. 3d 384. Our analysis begins by 8 presuming counsel to be competent, and the facts show such a presumption to be 9 justified here. State v. Jacobs , 2000-NMSC-026, ¶ 48, 129 N.M. 448, 10 P.3d 127. 10 Defendant’s desire was “to show th at [Victim] suffered from such mental 11 illnesses and exhibited bizarrebehavior, which likely would have affected her 12 credibility with the jury.” Defendant assert s that the treating doctors at the hospital 13 “would have testified regarding her intoxicated state, and what her injuries resulted 14 from, along with the effects the alcohol had on her cognitive ab ilities.” Defendant’s 15 arguments placed against the facts of the cas e fail to demonstrate any prejudice to him 16 in light of the evidence that establishe d Victim’s personal background, intoxication, 17 occasional lapse into seizure, and lack of memory of the incident. 188 We find no conduct by counsel that violat es the standards for representation by 1 which we evaluate such claims. De fense counsel apparently received much 2 information of exactly the type that De fendant now complains was not enough. A 3 request for discovery specifically request ed Victim’s psychological records and 4 included mention of possibly forty admissions to St. Vincent Hospital’s psychiatric 5 ward and twenty-four incident s of harassment, domestic vi olence, sexual assault, and 6 restraining order violations reported by Victim that defense counsel knew about. 7 Defense counsel had received seventy-tw o pages of police reports, detailing a 8 pantheon of intoxicated behaviors, and a statement by the police that providing full 9 records would be “time cons uming due to the amount of contacts” that Victim had 10 with police. 11 While police convenience is scant justif ication for shutting down discovery, we 12 observe that Victim’s psychological probl ems were well known to defense counsel, 13 and the cross-examination of Victim e xposed everything—a history of psychological 14 problems, frequent treatment , and broad problems with substance abuse—all of 15 which, Defendant wanted presented to the jury. 16 The testimony of the police and paramedics who responded to her 911 call 17 corroborated her story. The police arrived at a time when Victim was in a situation 18 of apparent and immediate peril. The po lice observed fresh injuries and, when the 199 hotel room door was opened, saw her on the floor witha broken telephone in her 1 hand—the other part of which was in Defendant’s hand. Defe ndant has not shown 2 any probability of a different result, either as to what he believes should have been 3 obtained by counsel being admissible or its effect on the outcome of the trial. 4 Defendant failed to rebut our presumption of his attorney’s competence and has failed 5 to carry his burden of demonstrating prej udice and the likelihood of a different result 6 had his attorney acted differently. We c onclude his claim of ineffective assistance 7 fails as a result. 8 2. Granting a Continuance Because Vi ctim Was Not Produced Until Just 9 Before Trial Was Not an Abuse of Discretion 10 The granting or denial of a continuance is within the sound discretion of the 11 trial court, and the burden of establishing abuse of discre tion rests with the defendant. 12 State v. Sanchez , 120 N.M. 247, 253, 901 P.2d 178, 184 (1995). The defendant must 13 show not only that the court abused its disc retion, but also that such abuse prejudiced 14 the defendant. State v. Nieto , 78 N.M. 155, 157, 429 P.2d 353, 355 (1967). Early in 15 the case, the State had been unable to find Victim. Later, she missed one interview 16 for which she had received notice. The district court entered an order to show cause 17 and continued the trial date as a result. Defendant does not de scribe any efforts 18 independently expended on hi s part to ascertain the whereabouts of Victim. 19 Defendant objected to the c ontinuance and moved to have Victim excluded as a 2010 witness. The district court denied the motion on July 14, 2008 and compelled 1 Victim’s attendance at an interview beforetrial. Granting a continuance under these 2 circumstances was not an abuse of discretion, as we noted in State v. Harper , 2010- 3 NMCA-055, ¶¶ 9, 11, 13, 148 N.M. 286, 235 P.3d 625, cert. granted, 2010-NMSC4 006, 148 N.M. 584, 241 P.3d 182. 5 3. Alleged Discovery Violations 6 We review the denial of a request for a mistrial for abuse of discretion. State 7 v. Gonzales , 2000-NMSC-028, ¶ 35, 129 N.M. 556, 11 P.3d 131. Since the district 8 court forestalled further te stimony about Officer Herman in its entirety, Officer 9 LeBlanc’s testimony established that Officer Hidalgo was at the door of the motel 10 room in Officer Herman’s company. O fficer Hidalgo testified that, upon arriving at 11 the room’s door, he heard a slapping noisecoming from within and a woman crying. 12 Contrary to Defendant’s argum ent, the court’s direct orde r was not violated. To the 13 extent the jury might have drawn an inference from the fact as testified to by Officer 14 LeBlanc, the admission of the fact was not violative of an order and in denying the 15 motion. The court was aware of Officer Hidalgo’s prospective testimony, which it 16 stated would be allowed. Given the lack of a clear violation of the district court’s 17 order and the stated reasons for denying the mi strial as a result, we hold that no abuse 18 of discretion occurred and affirm the district court on this issue. 1911 4. Discovery of Evidence Con cerning a Prior Rape Charge 1 Defendant asserts that discovery violations amounted to prosecutorial 2 misconduct that should have been sanctioned w ith either dismissal of charges or the 3 exclusion of evidence. The evidence Defendant asserts should have been provided 4 a day or two prior to trial concerns a prio r allegation of rape made by Victim against 5 him in December 2006, a little more than two months prior to the incident from which 6 this case arose. The evidence is of two so rts: (1) police photographs taken of Victim 7 in December, which Defendant sought to co mpare to photographs taken of Victim as 8 a result of this case; and (2) evidence c oncerning the basis for a DNA match of him 9 that was announced not long before trial. We look to whether (1) the State breached 10 a duty to provide the evidence, (2) the evid ence was material, and (3) Defendant was 11 prejudiced by its suppression. State v. Sandoval , 99 N.M. 173, 175, 655 P.2d 1017, 12 1019 (1982), abrogated on other grounds by State v. Holly , 2009-NMSC-004, 145 13 N.M. 513, 201 P.3d 844. 14 The test for materiality is whether ther e is a reasonable probability that had the 15 evidence been disclosed to the defense, th e result of the proceeding would have been 16 different. A reasonable probability is a pr obability sufficient to undermine confidence 17 in the outcome. As for determining whether the defendant has been prejudiced—the 18 third factor—we look at whether the defense counsel’s case would have been 1912 improved by an earlier disclosure, or how th e defense would have prepared differently 1 for trial. State v. Duarte , 2007-NMCA-012, ¶ 15, 140 N.M. 930, 149 P.3d 1027 2 (2006). Remedies for failing to provide di scovery are reviewed for an abuse of 3 discretion. State v. Bobbin , 103 N.M. 375, 377, 707 P.2d 1185, 1187 (Ct. App.1985). 4 We take each matter in turn. 5 a. Photographs 6 The day before trial, Defendant moved for dismissal or exclusion of evidence 7 based on the failure of the State to find photographs from the December incident that 8 the police report from that time said had been taken by the investigating officer. 9 Throughout extensive argument before the district court, Defendant maintained that 10 photographs taken in December by a SANE nursewere inadequate to show all of the 11 injuries received by Victim at that tim e and, therefore, precluded a comparison of 12 those injuries to ones shown by the police photographs of Victim from this case. 13 Defendant did not state what injuries might have been shown by the missing 14 photographs, just a desire to explore the extent to which they might have been 15 different from the SANE nurse’s photographs and may have shown that Victim had 16 received bruises in December for which De fendant would have no culpability in this 17

case. 1813 Defendant’s problems establishing materiality and prejudice stem from his 1 inability to effectively demonstrate the probative value of the undisclosed evidence 2 by showing any likely difference in qual ity and quantity between the unavailable 3 police photographs and what the SANE nur se documented through her examination 4 and photographs. The district court stated its disbelief that the SANE nurse’s report 5 and photographs would not be geared to ward documenting all possible injuries 6 presented to her. Second, in a case where some December bruises may have matched 7 those shown by the February photographs fro m this case, but others would not, the 8 district court was concerned at the exte nt to which a comparison of bruises was 9 material to proving that Victim was assaulted by Defendant. The district court stated 10 its intention to allow the jury to co mpare photographs from December and February 11 to see what may or may not match. The district court did not find the failure to 12 produce the photographs to be either exculpat ory or prejudicial to Defendant in light 13 of the evidence that was pr oduced to him by the State. 14 We agree with the district court that th e day before trial is late for Defendant 15 to have the hearing on motions filed some tw o months before and that late disclosure 16 is to be discouraged. However, we agr ee with the district court that Defendant’s 17 assertion that the police photographs of any injuries existing in December would be 18 different in scope or kind than the photographs provide d by the SANE nurse are no 1914 more than speculation. Other evidence ma y establish the acts of battery as opposed 1 to the effects of Defendant’s acts at any relevant time. Whether Victim exhibited 2 other injuries than bruises, and when the photographed injuries occurred are not 3 evidence that necessarily turns the tide in Defendant’s favor as to the materiality of 4 the police photographs versus the SANE phot ographs or the prejudice Defendant may 5 have suffered by this non-disclosure. We hol d that the district court did not abuse its 6 discretion by declining to grant sanctions fo r the State’s failure to timely produce the 7 photographs. 8 b. DNA Evidence 9 The evidence of the DNA match from the December rape case was not going 10 to be presented as evidence by the State in this case. Defendant’s only argument 11 before the district court as to the report of the DNA match was si mply that it appeared 12 to be irregular, was material, and that its late production had hampered his 13 preparation for trial because he wanted to establish that he had been falsely accused 14 of rape and would use an exculpatory resu lt to attempt to do so. Given the lack of 15 evidence presented by either side con cerning the circumstances surrounding the DNA 16 test, save the letter announcing its result, weare unable to assess its materiality for 17 purposes of this trial. Further, given th at impeaching Victim with an incident of 18 specific conduct (false accusation) is not susceptible to proof through extrinsic 1915 evidence. Rule 11-608(B) NMRA. Defe ndant has not shown how he would have 1 prepared differently for trial since, until the week before trial, there was no result, and 2 the late evidence was both inculpatory and inadmissible. Hence, we see no prejudice 3 to his case and affirm the district court’s ruling. 4 5. Officer LeBlanc’s Testimony About Seeing an Excluded Witness 5 As a result of the State’s inability to produce Officer Herman, he was excluded 6 as a trial witness by the district court, and the State was instructed not to discuss 7 anything he may have said. In a later ru ling, the district court ordered that no 8 testimony ensued that Officer Herman had doneanything at the scene. On the stand, 9 Officer LeBlanc mentioned coming to the hotel and seeing Officer Herman. 10 Defendant maintains that this testimony was impermissible evidence; it was not. At 11 this point, extensive discussion ensued, re sulting in the court admonishing the State 12 for “pushing the edge” of the ruling. Defendant’s motion for a mistrial was denied. 13 The district court extended its order to e xplicitly forbid the State from any mention of 14 what Officer Herman did. This ruling cl osed the hole on what Defendant objected to 15 and to what the court had found existed in its earlier ruling. Thus, Officer LeBlanc’s 16 testimony did not violate the ruling in place and was prevented from proceeding. The 17 court’s subsequent order was not violated. 18 6. Officer LeBlanc’s Testimony as to Paramedic Hearsay 1916 Officer LeBlanc’s testimony, as to what Victim told paramedics about being hit 1 over the head by a whiskey bottle, was admitted over objection as a statement made 2 for purposes of medical diagnosis. We note that the paramedic testified to the same 3 information earlier in the trial without objec tion. Immediately thereafter, the court 4 sustained an objection to the prosecutor’s question about whether Victim had said 5 anything “about the phone[.]” That statem ent was overruled, but no statement about 6 what the significance of the phone may havebeen was solicited at that time. The 7 same statement concerning the whiskey bo ttle was made to Officer LeBlanc and, 8 when he testified to it, admitted over objection as an exc ited utterance. Immediately 9 thereafter, Officer LeBlanc te stified to Victim’s statement that she had been hit with 10 the telephone and prevente d by Defendant from calling 911; there was no objection. 11 Although the source of any injury (supposed bo ttle to the head) is relevant in that 12 regard, we agree that being prevented fro m calling 911 is not, but Officer LeBlanc 13 apparently testified that the 911 comment wa s made to him. No comment about the 14 assertion’s truth was made by counsel on e ither side. Officer Hidalgo testified to 15 Victim’s statements about what had o ccurred, and that testimony passed without 16 objection. Defendant now a sserts that the admission of Officer LeBlanc’s testimony 17 concerning these statements was reversible error, and we disagree. 1817 First, we note that, by this time in the trial, Victim had already entirely abjured 1 the idea that she had been hit with a bottle and testified that she was struck with the 2 telephone as she tried to call 911. Second, the paramedic te stified to her statement to 3 him about the bottle without objection, and later testimony by Officer Hidalgo 4 similarly ensued without objections. Wethus believe that Officer LeBlanc’s 5 testimony is cumulative of other testimony to which Defendant did not object. Since 6 we review the admission of evidence for an abuse of discretion, State v. 7 Granillo-Macias , 2008-NMCA-021, ¶ 8, 143 N.M. 455, 176 P.3d 1187, to agree with 8 Defendant requires that we hol d that the district court’s rulings were clearly untenable 9 or not justified by reason. We cannot do that. The paramedic described the 10 statements made to him as part of his ascertaining the nature of Victim’s injuries 11 without objection and reasonably establishing them as statements relating to medical 12 diagnosis. The telephone statements were apparently made as officers entered the 13 motel room and asked what had happened. Given evidence that, upon their entry, the 14 disconnected telephone handset was in Defendant’s hand as he stood over Victim, it 15 was also justifiable for the district court to conclude that Victim was still under the 16 stress of the moment. The sum of the evidence indicates that no abuse of discretion 17 occurred, and the record shows the statements to be cumulative. We affirm the 18 admission of the statements. 1918 7. Alleged Prosecutorial Misconduct Does Not Warrant Reversal 1 The prosecutor’s comment in closing st atement—“Everyone has the right to a 2 trial [and e]veryone has the right to say I didn’t do it”—passed without objection until 3 the end of the argument. At that time, the district court ruled that it was not a 4 comment on Defendant’s silence, declined th e request to make a curative instruction, 5 and told Defendant that he could re-empha size the State’s burden as he chose. This 6 statement does not naturally and necessarily constitute a comment on Defendant not 7 testifying as we required in State v. Calvillo , 110 N.M. 114, 119, 792 P.2d 1157, 1162 8 (Ct. App. 1990). The defense did not object at the time the statement was made. We 9 have previously held, in State v. Carmona , that it is the defense’s obligation to object 10 at the earliest possible time so as to allow th e court to act and that objecting at the end 11 of the State’s argument is too late. 84 N.M. 119, 121, 500 P.2d 204, 206 (Ct. App. 12 1972). Here, as in Carmona , Defendant’s counsel stated that he did not object 13 because he did not want to call too much attention to the statement. This does not 14 excuse the lack of a timely objection and allo ws us to conclude that Defendant waived 15 the argument. State v. Milton , 86 N.M. 639, 643, 526 P.2d 436, 440 (Ct. App. 1974). 16 In its closing, Defendant clearly stated thatthe jury would have to “get over” the fact 17 Defendant did not testify and stated clearly that it was his right not to do so. We see 18 no abuse of discretion in the district court’s desiring for a more timely objection that 1919 might have allowed it to “clarify” the matter, nor an abuse of discretion in declining 1 to give a curative instruction. 2 8. Proof of Prior Convictions 3 Defendant directs us to nothing in the statement of facts or later argument 4 indicating that he objected to the quality of proof concerning his two prior felony 5 convictions that were taken by the court to support sentencing him as an habitual 6 offender. We hold that since each doc ument submitted demons trated Defendant’s 7 name and date of birth, and the New Mexico conviction al so contained the same social 8 security number, the court could consider that a prima facie case had been made 9 establishing the prior offenses. We rely on State v. Smith that the standard of proof 10 for the evidence of conviction is a pre ponderance of the evidence. 2000-NMSC-005, 11 ¶ 8, 128 N.M. 588, 995 P.2d 1030. The S upreme Court pointed out that once the 12 State has made a prima facie case, it is th e defendant’s burden to present convincing 13 evidence to demonstrate the invalidity of the convictions. Id. ¶ 10. In the present 14 case, Defendant failed to do so , and we affirm the enhan cement of his sentence as a 15 habitual offender. 16 III. CONCLUSION 17 Defendant’s convictions and sentence are affirmed. 18 IT IS SO ORDERED. 1920 _______________________________ 1 RODERICK T. KENNEDY, Judge 221 WE CONCUR: 1

_____________________________________________ 2 JONATHAN B. SUTIN, Judge 3

_____________________________________________ 4 CYNTHIA A. FRY, Judge (concurring in result only) 5